A. OVERVIEW

[1] The accused Dellen Millard and Mark Smich (hereinafter, Millard and Smich) are charged with one count of first degree murder on the person of Laura Babcock. I have been hearing a large number of pre-trial Motions on various dates since March 27, 2017. Jury selection is scheduled to commence on October 12, 2017.

[2] An earlier Motion brought by the Crown, in late August 2017, sought the admission of what was referred to as extrinsic discreditable conduct. Some of this evidence involved purchases and attempted purchases by Millard and Smich of firearms and ammunition. One handgun was purchased in February 2012 and a second handgun was purchased in September 2012, that is, both before and after Ms. Babcock’s alleged disappearance and murder in early July 2012. The vendor of the guns was a now convicted firearms trafficker named Matthew Ward-Jackson (hereinafter, Ward-Jackson). At the same time as the Crown sought admission of this evidence, a separate Motion brought by the defence sought to exclude evidence concerning a third firearm purchased by Millard from Ward-Jackson in early July 2012, that is, at the actual time when Ms. Babcock disappeared.

[3] I indicated to counsel that I wanted to hear all of the firearms-related issues together in one Motion, regardless of the differing burdens on the parties on the two Motions. I also indicated that some of the evidence tendered as extrinsic misconduct might be characterized as evidence directly relevant to Ms. Babcock’s disappearance. In particular, certain text messages between Millard and Smich during the months leading up to Ms. Babcock’s disappearance appeared to be directly relevant to the Babcock matter, provided some of the extrinsic misconduct was edited out of the text messages. I asked that the admissibility of this text message evidence be determined at the same time as the admissibility of the firearms evidence. See R. v. Millard and Smich, 2017 ONSC 5275 at paras. 8-15.

[4] During the course of argument of the August 2017 Motion concerning evidence of extrinsic misconduct, it became apparent that counsel for Smich challenged the admissibility of certain evidence concerning Smich’s alleged financial dependency on Millard. This issue had not been raised before and the Crown had assumed the admissibility of this body of evidence. Smich challenged its admissibility on grounds of probative worth versus prejudicial effect, that is, on the same basis that evidence of extrinsic discreditable conduct can be excluded. I directed that this issue should be determined at the same time as the firearms evidence.

[5] Finally, the Crown has recently recognized that one further body of evidence that it sought to tender, which had not been included in any previous Motion, raised somewhat related issues of extrinsic discreditable conduct. This evidence involved certain oral utterances, allegedly made by Smich to the Crown witness Desi Liberatore, about criminal activities other than Ms. Babcock’s murder. The Crown agreed to include this evidence in the Motion concerning the firearms evidence.

[6] In the result, the present Motion has been referred to as an “Omnibus Application” and it concerns a number of discrete bodies of evidence. They are all loosely linked by the fact that they may or may not involve extrinsic discreditable conduct. In any event, the admissibility of all this evidence turns on the same principle of evidence law, namely, balancing probative worth and prejudicial effect.

[7] The evidence tendered on the Motion falls into four broad categories, as follows:

• Evidence concerning firearms purchases and attempted purchases by Millard and Smich during 2012. This evidence covers purchases before Ms. Babcock disappeared, at the time of her disappearance and alleged murder (in early July 2012), and afterwards;

• Certain text messages between Millard and Smich, in the months leading up to Ms. Babcock’s disappearance, in which they refer to unspecified joint endeavours that they were pursuing and to the anticipated increase in those activities;

• Evidence inferring that Smich had a certain degree of financial dependence on Millard in the period leading up to Ms. Babcock’s disappearance; and

• Certain oral utterances, allegedly made by Smich to Desi Liberatore after Ms. Babcock’s disappearance, about criminal activities other than Ms. Babcock’s murder.

[8] I heard argument on this Motion over two days and reserved judgment on September 27, 2017. These are my Reasons for Judgment.

B. FACTS

[9] The details of the four bodies of evidence set out above will be set out in the next section of these Reasons, when their admissibility is analyzed. However, before its admissibility can be determined, the challenged evidence has to be situated within the broad context of the Crown’s case, in order to determine its probative worth and prejudicial effect. Accordingly, I will set out an overview or summary of the Crown’s case in this section of these Reasons.

[10] There is no direct evidence that Ms. Babcock is deceased. Her body or her remains have never been found and there is no crime scene. Furthermore, there is no direct evidence that the accused murdered her. The Crown’s case is entirely circumstantial in relation to both of these issues. That circumstantial case is made up of a number of large and complex bodies of evidence, as follows:

• First, evidence of motive. There are text messages and witness testimony inferring that Ms. Babcock was a former lover of Millard and that she was interfering in Millard’s relationship with his current girlfriend, Christina Noudga. In April 2012, Millard told Ms. Noudga that he would “hurt” Ms. Babcock and “make her leave.” He also told Ms. Babcock in a text message that same day, “You are harmful to me, please don’t try to contact me.” In early May 2012, Millard asked a mutual friend (Andrew Michalski) to keep him “updated on where Laura goes out to, that’d be of use to me”;

• Second, evidence of opportunity. A large body of evidence infers that Ms. Babcock was itinerant and essentially homeless during the month of June 2012. She was working as an escort, she was struggling with mental illness, and she was constantly reaching out to people she knew and asking to stay with them. There is evidence inferring that she was infatuated with Millard and that she reached out to him on June 30, 2012. They exchanged a number of text messages on July 2^nd^ and 3^rd^, 2017. Telephone records and forensic cell phone analysis indicate that their two phones came together on the evening of July 3^rd^, 2012 near the Kipling subway station and their cell phones then moved together to the vicinity of Millard’s home in Etobicoke. It appears that Smich’s cell phone was also in the vicinity of Millard’s home in Etobicoke throughout the day and into the evening of July 3, 2012. There is also evidence to the effect that Smich stayed at Millard’s home a couple of nights a week during this time period;

• Third, evidence of planning and intention. On May 16, 2017, Millard began taking a series of steps in order to acquire a large commercial incinerator. He initially tried to have an incinerator built. By June 18, 2017, he was in the process of purchasing an incinerator. It arrived and was in Millard’s possession by July 5^th^, 2017. Millard and Smich discussed these plans to obtain an incinerator throughout this period. Between June 30^th^ and July 3^rd^, 2017, Millard also purchased a 32 calibre handgun from Ward-Jackson. This latter evidence is in issue on the present Motion;

• Fourth, evidence of Ms. Babcock’s disappearance. After Ms. Babcock’s and Millard’s cell phones had moved together to the vicinity of Millard’s home on the evening of July 3, 2012, Ms. Babcock’s phone made an outgoing call at 7:03 pm, apparently to check her voicemail. This was the last outgoing activity on her phone. The next morning, at 10:43 am on July 4, 2012, Ms. Babcock’s iPad was “synched” or “backed up” to one of Millard’s home computers. Smich also began using this iPad that had belonged to Ms. Babcock, beginning on July 4, 2012, and it was later found in his possession when he was arrested in 2013. Ms. Babcock’s suitcase was also found in Smich’s possession. Ms. Babcock has never been seen again by her family or friends. All of her banking, credit card, and social media activity stopped. There is no record of her crossing the border;

• Fifth, evidence of the disposal of certain remains in the incinerator. Cell phone analysis indicates that Millard’s and Ms. Babcock’s phones moved away from Millard’s home in Etobicoke on July 4, 2012. Although there was no outgoing activity on Ms. Babcock’s phone at this time, it continued to receive incoming calls during the morning and so there is tracking evidence for both phones during this period. The two phones moved west from the Etobicoke home at around 11:00 am, along the Q.E.W. At about 11:11 am, Ms. Babcock’s phone received its last call. Millard’s phone continued to travel west along the lakeshore and eventually arrived at his farm property in Ayr. At 2:40 pm on July 4, 2012, Millard’s phone took a photograph of a long object wrapped tightly in a blue tarp in front of the barn gate at his farm. It is arguably about the size and shape that could contain a body. On July 7, 2012, there is a calendar entry in Millard’s phone concerning a “barn smell check.” By July 23, 2012, the incinerator had been tested and was working. Millard sent Smich a text message at 3:07 pm stating, “bbq has run its warm up, it’s ready for meat.” At 10:38 pm that evening, Millard’s phone carried out a Google search asking, “what temperature is cremation done at.” There is abundant evidence that Millard and Smich burned something in the incinerator that night at Millard’s airport hangar premises. Millard took two photographs that night of the interior of the incinerator while it was in use. Expert opinion evidence, which is the subject of a separate Motion, is to the effect that the photographs could depict human bones, although the experts cannot give a definitive opinion. Smich’s girlfriend, Ms. Meneses, was present on a night when Millard and Smich took the incinerator from Millard’s barn at his farm in Ayr to Millard’s airport hangar premises at the Waterloo airport where they could obtain power. She saw them burn something inside the incinerator but she did not see what it was. They told her “to go off” and to “stay in the car” while they were at the incinerator. She did not recall the date of this incident. The two accused had discussed whether to allow Ms. Meneses to be present for the “BBQ mission” in a July 21, 2012 text message. Smich told Millard, “She [Ms. Meneses] can wait in front while we r out back talkin to that girl”;

• Sixth, evidence of post-offence statements. Both Millard and Smich are alleged to have made post-offence statements that relate to Ms. Babcock’s disappearance. Millard wrote a letter to Ms. Noudga, after his arrest, in which he referred to events on “the night Laura disappeared,” indicating that Ms. Babcock was at his house “alive” and “doing coke” with Smich that night. The letter appears to be an attempt by Millard to get Ms. Noudga to shift blame to Smich in relation to Ms. Babcock’s disappearance. A subsequent letter from Millard to Ms. Noudga referred to this earlier letter as simply “brainstorming, forget it.” Millard also made statements to Ms. Babcock’s former boyfriend, Shawn Lerner, who was trying to find Ms. Babcock after she had disappeared. Millard explained Ms. Babcock’s final phone calls to him, prior to her disappearance, on the basis that she was looking for drugs and a place to stay and he had refused her. Millard told Mr. Lerner that “[I] don’t know where she is.” Smich’s statements are tied up with a rap song that he performed for two young friends, Mr. Cronin and Mr. Liberatore, sometime in the late summer of 2012. It concerned the topic of burning a girl and throwing her cell phone in the water somewhere. In the context of performing the song, Smich told these two friends that he actually did kill a girl and burn her body. There is a rap song found on Ms. Babcock’s iPad, apparently composed by Smich beginning on the night of July 23/24, 2012 when certain remains were disposed of in the incinerator. It is as follows:

The bitch started off all skin and bone, now the bitch lay on some ashy stone, last time I saw her was outside the home, and if u go swimming u can find her phone.

Ms. Babcock’s phone has never been found. The interior of the incinerator arguably resembles “ashy stone.” The rap song also appears to have been performed for Millard, and recorded at Millard’s home, in September 2012.

C. ANALYSIS

(i) Introduction

[11] The law relating to the admissibility of evidence that can properly be characterized as extrinsic discreditable conduct has already been set out in my earlier Reasons on this subject. See: R. v. Millard and Smich, 2017 ONSC 5275. To repeat, its admissibility involves analogous principles to those governing similar fact evidence, namely, the balancing of legitimate probative worth against prejudicial effect. Indeed, the admissibility of all evidence — whether discreditable or not — is subject to this broad common law exclusionary rule. See: R. v. F.F.B. (1993), 1993 CanLII 167 (SCC), 79 C.C.C. (3d) 112 at paras. 71-3 (S.C.C.); R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 at paras. 96-100 (Ont. C.A.); R. v. Luciano (2011), 2011 ONCA 89, 267 C.C.C. (3d) 16 at paras. 217-235 (Ont. C.A.); R. v. Stubbs (2013), 2013 ONCA 514, 300 C.C.C. (3d) 181 at paras. 54-6 (Ont. C.A.).

(ii) The firearms evidence

[12] The firearms evidence that the Crown seeks to tender includes four somewhat distinct bodies of evidence, as follows:

• Evidence relating to Millard’s purchase of a 32 calibre handgun from Ward-Jackson on or about July 2, 2017;

• Evidence relating to an earlier purchase of a Walther handgun from Ward-Jackson, involving both Millard and Smich, in February 2012;

• Evidence relating to attempts by Millard to purchase a handgun and ammunition for Smich in the United States in April 2012;

• Evidence relating to the subsequent purchase of a Bodyguard handgun from Ward-Jackson in September 2012.

[13] The last two of these four bodies of evidence are more easily dealt with and will be addressed first. In my view, they are both inadmissible. The purchase of a handgun in September 2012 from Ward-Jackson has no direct relevance to Ms. Babcock’s earlier disappearance in July 2012. Its only indirect relevance is to show that Millard’s relationship with Ward-Jackson was as a gun dealer. This is a relevant issue because Millard reached out to Ward-Jackson on June 30 and on July 1, 2012, in two text messages, at a time when he may have been anticipating meeting up with Ms. Babcock. In the two text messages, he requested a meeting with Ward-Jackson. There is somewhat conflicting evidence as to the reason why Millard texted Ward-Jackson and requested a meeting. The defence submits that it was because Ward-Jackson supplied drugs to Millard. The Crown submits it was because Ward-Jackson supplied guns to Millard.

[14] Although the evidence of a subsequent gun purchase in September 2012 is relevant, to infer back as to the nature of the relationship between Millard and Ward-Jackson in early July 2012, it is far less probative of this issue than the evidence of the earlier gun purchase in February 2012. In addition, it is highly prejudicial inferring Millard’s ongoing criminal activities some time after Ms. Babcock’s disappearance. In my view, the legitimate probative value of this evidence is outweighed by its prejudicial effect. Accordingly, it is inadmissible.

[15] The evidence of Millard’s efforts to obtain a handgun and ammunition for Smich in the United States in April 2012 is not connected to Ward-Jackson. Millard was traveling in the United States at this time and he communicated with Smich by text message. They discussed various types of guns that Millard had tested and they debated which gun was most “suited to you” [Smich]. The text messages refer to needing to purchase a gun for Smich by June 2012 because “a lot of shit is happening soon, we gotta organize our time,” as Smich put it. Millard replied, “I’ll have you busier than you’ve ever been in life, you’ll see, we’re gonna build something you’re proud of.” It appears that Millard never did purchase a gun for Smich on this trip to the United States in April 2012, although he may have purchased ammunition.

[16] In my view, the attempted purchase of a gun and ammunition in the United States in April 2012 appears to relate to a broader conspiracy between Smich and Millard, to engage in a crime spree that would require guns. Both the Crown and Mr. Pillay agree with this interpretation of the above text messages, especially when they are situated in the context of all the other evidence about the various criminal “missions” that Millard and Smich were discussing. I have already excluded evidence concerning these “missions” in my earlier Reasons on the August 2017 Motion. See: R. v. Millard and Smich, 2017 ONSC 5275. It may well be that this broad criminal conspiracy included murdering Ms. Babcock. Accordingly, this evidence about attempted U.S. gun purchases is relevant. However, any connection between the attempted U.S. gun purchases and Ms. Babcock is far from clear and it is highly prejudicial, inferring Millard’s and Smich’s general criminal disposition or propensity. Accordingly, the evidence is inadmissible because its legitimate probative worth is outweighed by its prejudicial effect.

[17] The first two items of evidence summarized above — the July 2^nd^, 2012 purchase of a 32 calibre handgun and the February 2012 purchase of a Walther handgun — are far more probative in relation to Ms. Babcock’s alleged disappearance and murder on or about July 3/4, 2012. They are also factually connected because Ward-Jackson was the vendor of both of these guns. The relevance of the February 2012 purchase depends on the admissibility of the July 2, 2012 purchase because the earlier purchase infers that there was an existing gun trafficking relationship between Millard and Ward-Jackson, when Millard asked to meet with Ward-Jackson in the two initial text messages sent on June 30 and July 1, 2012. As noted above (at para. 13), there is a factual dispute between the Crown and the defence as to the reason why Millard was seeking this meeting. The admissibility of the July 2, 2012 gun purchase is more directly relevant to Ms. Babcock’s alleged disappearance and murder one or two days later. It is only if the July 2, 2012 gun purchase is admissible that the earlier February 2012 gun purchase then becomes relevant, to help resolve the dispute as to why Millard sought a meeting with Ward-Jackson on June 30 and July 1, 2012. The parties agree, in these circumstances, that the admissibility of the July 2, 2012 gun purchase should be determined first.

[18] The Crown’s evidence to the effect that Millard purchased a 32 calibre handgun from Ward-Jackson on July 2, 2012, shortly before Millard met up with Ms. Babcock on July 3, 2012, appears relatively straightforward at first glance. A series of text messages between Millard and Ward-Jackson from June 30 to July 3, 2012 clearly described the gun sale transaction. The police subsequently seized a 32 calibre handgun from Millard’s home in Etobicoke on November 29, 2012. The gun had Millard’s DNA on it. Furthermore, Ward-Jackson has now pleaded guilty to this gun trafficking transaction and he is potentially available to be called as a witness. What complicates the evidence is some of the surrounding details, in particular, the following:

• When Millard first sought a meeting with Ward-Jackson in their initial June 30, 2012 text message, he stated, “want to play a ball.” This is arguably a reference to wanting to purchase cocaine. Millard had, in fact, purchased certain drugs from Ward-Jackson in the past. There is also evidence that both Millard and Ward-Jackson were involved in trafficking cocaine;

• The second text message, on July 1, 2012, made no mention of the specific purpose for the requested meeting. Ten further text messages then ensued between Millard and Ward-Jackson. None of these ten further text messages have been recovered by the police and they are simply not available;

• In the next recovered and available text message between Millard and Ward-Jackson, at 8:14 pm on July 1^st^, 2012, the parties explicitly talked about the sale of a 32 calibre handgun. It is Ward-Jackson who referred to the gun and who offered to sell it to Millard. In other firearms transactions between Millard and Ward-Jackson, it was generally Ward-Jackson who would introduce the subject by telling Millard that he had a certain gun available for sale and by asking Millard if he was interested;

• Cell phone tracking evidence indicates that Millard’s and Ward-Jackson’s phones came together on the evening of July 2^nd^, 2012, inferring that they met. This was shortly after Ward-Jackson had sent a text to Millard stating, “it’s here, wanna get her out.” The next day, in Millard’s July 3^rd^, 2012 text message to Ward-Jackson, it is clear that Millard now has the gun in his possession and that the transaction is complete. However, the text messages indicate that the gun did not have ammunition. Ward-Jackson promised to deliver the ammunition to Millard “tonight.” There is no evidence that they ever did meet again or that Millard had obtained ammunition for the gun by July 3 or 4, 2012, when Ms. Babcock was allegedly murdered;

• Ms. Babcock’s body or remains have never been found and there is no crime scene. As a result there is no evidence of any cause of death and, in particular, no evidence that Ms. Babcock was killed by means of a gunshot; and

• Finally, the seizure of the gun at Millard’s residence in November 2012 is tied up with the death of Millard’s father Wayne. The police received a 911 call, attended at the premises, and found the gun near Wayne Millard who was deceased in his bed. The police initially thought it was a suicide. Millard testified in the Ward-Jackson gun trafficking proceedings that he bought the gun as a gift for his father and gave it to him. Millard has now been charged with the murder of his father and that Indictment is pending in this Court.

[19] In all these circumstances, Mr. Pillay submits that the purchase of the gun has minimal probative value and has significant prejudicial effect. He submits that the evidence tends to infer that Millard was seeking to meet with Ward-Jackson in order to buy cocaine, that Ward-Jackson made an unsolicited offer to sell a recently acquired gun, that Millard bought the gun without any bullets, that the gun was never used in relation to Ms. Babcock, and that Millard gave the gun to his father (who then used it to commit suicide on November 29, 2012, leading to the police being called and to the seizure of the gun). Ms. Trehearne goes further and submits that the gun is simply not relevant to Ms. Babcock’s alleged disappearance and murder because the Crown does not allege that the gun is the murder weapon.

[20] I should add that both Mr. Pillay and Ms. Trehearne rely on the submission that Millard already had one firearm, having bought the Walther handgun from Ward-Jackson in February 2012. Accordingly, he had no need to purchase a second handgun on July 2, 2012 for the purpose of killing Ms. Babcock. This submission is undermined by the fact that both Mr. Pillay and Ms. Trehearne submit that the earlier purchase of the Walther handgun is either irrelevant, or minimally probative and highly prejudicial, and that it should be excluded.

[21] Mr. Lockhart, on behalf of the Crown, makes it clear that the Crown does not allege that Ms. Babcock was murdered by means of a gunshot from the 32 calibre handgun (or any other firearm). The Crown cannot prove the precise means of causing death in this case because there is no body and no crime scene. The accused were not arrested for the Babcock murder until April 10, 2014, almost two years after Ms. Babcock’s disappearance. The Crown submits that Millard’s purchase of the handgun on July 2, 2012, shortly after Ms. Babcock had contacted him and shortly before they were to meet, is relevant to planning and deliberation and to intent in relation to a murder committed between July 3 and 4, 2012.

[22] In my view, Millard’s purchase of the 32 calibre handgun on July 2, 2012 has considerable probative value in relation to the alleged disappearance and murder of Ms. Babcock and that probative value outweighs any prejudicial effect. There are three main flaws in the defence analysis of the probative value of this evidence. First, they fail to situate the evidence of the gun purchase in the context of all the other circumstantial evidence and, instead, analyze the gun purchase evidence in isolation. Second, they rely on disputed inferences that will be for the jury to resolve at trial, on the basis of all the evidence. Third, they rely heavily on the absence of a body and a crime scene, in terms of the gun’s relevance to cause of death, whereas the true relevance of the gun purchase evidence is to intent and planning.

[23] As to the first point, the law in relation to circumstantial evidence has always been that individual items of circumstantial evidence may not seem particularly probative, when analyzed in isolation, but they can gather strength when assessed together with all the other evidence. Taschereau J., as he then was, made this point long ago in R. v. Coté (1941), 1938 CanLII 44 (SCC), 71 C.C.C. 75 at 76 (S.C.C.), speaking for six members of the Court:

It may be and such is very often the case, that the facts proven by the Crown, examined separately have not a very strong probative value, but all the facts put in evidence have to be considered each one in relation to the whole, and it is all of them taken together, that may constitute a proper basis for conviction. [Emphasis added.]

[24] More recently, in R. v. Terry (1996), 1996 CanLII 199 (SCC), 106 C.C.C. (3d) 508 at 518-519 (S.C.C.), the Court considered the admissibility of a poem in a murder case that involved a stabbing. The accused wrote the poem in which he referred to “crazy thoughts” in his head and to having “killed a life … with my knife.” McLachlin J., as she then was, gave the judgment of the unanimous full Court and described the probative value of the poem as “not great” but it was, nevertheless, admissible as one “link in a chain of inferences tending to establish guilt.” Her Reasons on this point were as follows:

An admission against interest made by the accused is admissible as a recognized exception to the hearsay rule, provided that its probative value outweighs its prejudicial effect.

The probative value of the poem on the ultimate issue is not great. As a form of artistic expression, a poem is not necessarily probative of the "truth" expressed therein; an author may have any number of motivations for expressing himself or herself in a given fashion, only one of which is to recite what he or she did. Moreover, this poem's connection with known events is tenuous. No names were mentioned. The poem is undated. No details of the "crime" described in the poem were provided other than a reference to the use of a "knife". At the same time, its prejudicial effect was considerable. The danger existed that the jury would accept the poem's oblique factual similarity with actual events to infer directly that the appellant was the author of both the poem and the events.

These concerns, however real, were alleviated by the careful instruction the jury received on the use of the poem. The trial judge charged the jury that it could conclude that the poem represented a "lament about the killing in question", but was not to use it in isolation as direct proof of the fact the appellant committed the act. It was admissible, he instructed, as a link in the chain of inferences tending to establish guilt; the strength of that link was for the jury to determine based on the cogency of the connecting inferences and the number and nature of alternative innocent inferences. [Emphasis added.]

Also see: R. v. Morin (1988), 1988 CanLII 8 (SCC), 44 C.C.C. (3d) 193 at 205-211 (S.C.C.); R. v. Bouvier (1984), 1984 CanLII 3453 (ON CA), 11 C.C.C. (3d) 257 at 264-6 (Ont. C.A.), aff’d. 1985 CanLII 17 (SCC), 22 C.C.C. (3d) 576 n (S.C.C.); R. v. Lynch, Malone and King (1978), 1978 CanLII 2347 (ON CA), 40 C.C.C. (2d) 7 at 19 (Ont. C.A.).

[25] I have summarized the extensive body of circumstantial evidence on which the Crown relies (at para. 10 above). The evidence of Millard’s gun purchase on July 2, 2012 is one small piece of that large body of evidence. Its utility in proving that Millard and Smich committed first degree murder can only be determined by situating it within the totality of the evidence and assessing the strength of the various inferences linking the chain of circumstantial evidence, as in Terry and in Coté. When considered in this manner, Millard’s purchase of a handgun shortly after he had purchased a large commercial incinerator and the day before he was to meet with Ms. Babcock, a woman he had said he would “hurt” and would “make her leave,” and a woman who suddenly disappeared shortly after Millard met with her, has considerable probative value as evidence of Millard’s intent and as evidence of planning. The defence analysis of Millard’s gun purchase on July 2, 2012 consistently failed to consider the evidence in the context of all the other surrounding evidence.

[26] As to the second point, the defence assessment of the probative value of the evidence concerning Millard’s gun purchase relied heavily on disputed inferences. For example, the submission that Millard was merely seeking to purchase cocaine from Ward-Jackson, that Ward-Jackson then made an unsolicited offer to sell a gun, and that Millard bought the gun without ammunition as a gift to his father, are all disputed by the Crown. There are competing inferences on all these points and it will be for the jury to decide which inferences they accept.

[27] In this regard, the timing of Millard’s contacts with Ward-Jackson, the significance of the ten missing text messages, and Millard’s prior contacts with Ward-Jackson (which will be discussed below) are all important considerations. Millard and Ms. Babcock had a number of telephone contacts during the afternoon and evening of June 30, 2012. It can be inferred that she was seeking a place to stay and that she was infatuated with Millard. It is in the context of these calls that Millard sent his initial text message to Ward-Jackson. Millard and Ms. Babcock then continued their telephone contacts on July 1, 2012. Once again, in this context Millard sent a text message to Ward-Jackson for a second time and sought a meeting. Millard and Ms. Babcock continued their telephone contacts on the afternoon of July 2, 2012. By this point, Millard was in contact with Ward-Jackson and they consummated the gun sale shortly before 8:00 pm on the evening of July 2, 2012. Finally, on July 3, 2012, Millard and Ms. Babcock appear to have met at about 6:37 pm at the Kipling subway station and appear to have proceeded to Millard’s home at about 7:00 pm. Immediately before they met, at 6:19 pm, Millard texted Ward-Jackson and stated that he was in possession of the gun (either on his person or at his home) and that he was pleased with Ward-Jackson’s promise to deliver the ammunition “tonight,” stating “that’s great news.”

[28] The coincidence of the timing of these various contacts between Millard and Ms. Babcock and between Millard and Ward-Jackson and the significance of the ten missing text messages, together with the evidence of Millard’s prior relationship with Ward-Jackson (to be discussed below) will assist the jury in deciding whether to draw the inferences relied on by the defence or the inferences relied on by the Crown. Decisions as to admissibility of evidence in a circumstantial case should not be based on precipitously drawing one set of competing inferences and usurping the function of the jury.

[29] As to the third point, there is no body and no crime scene in this particular murder case and so the Crown cannot prove the precise cause of death. The gun may or may not have been used in some fashion, either with or without bullets. However, this is speculation and the Crown is not asking the jury to draw speculative inferences about any use of the gun. Rather, Millard’s purchase of the gun on July 2, 2012, shortly after he had purchased the incinerator and immediately before Ms. Babcock apparently met with Millard and then disappeared, is relevant to Millard’s intent at that time and to whether he was planning a murder at that time. A handgun for which bullets have been promised that very night is an instrument of death. Its acquisition on the evening of July 2, 2012 provides evidence of intent and planning in relation to murder.

[30] For all these reasons, the purchase of the 32 calibre handgun on July 2, 2012 has significant probative value. As to prejudicial effect, the defence submissions on this point were mainly focused on the fact that the evidence concerning the police seizure of the gun on November 29, 2012 is tied up with the Wayne Millard homicide. In my view, this concern is over-stated. The Crown advises that it will seek an admission from the defence, pursuant to s. 655 of the Criminal Code, to the general effect that “the 32 calibre handgun was eventually found at the Etobicoke residence where Millard resided and it had Millard’s DNA on it.” The gun will presumably become an exhibit. The exact date of the seizure does not have to be mentioned, the fact of a police entry onto the premises does not have to be mentioned, and Millard’s alleged possession of the gun at the time of the seizure does not have to be asserted. In this way, no suspicions will be aroused about the circumstances surrounding the finding of the gun and no allegations will be made as to who was in possession of the gun at that time. If the defence refuses to make the requested admission, then the Crown can simply call the exhibits officer who seized the gun, prove the fact of the seizure at the Etobicoke home, prove the subsequent submission of the gun for forensic testing, and prove the test results. It will be a tactical decision for the defence, whether to accept the Crown’s proffered admission, and it will be a tactical decision for the defence whether to elicit evidence concerning the circumstances that led the police to attend at the Etobicoke home. In other words, the defence can control any prejudicial effect concerning the Wayne Millard homicide and the circumstances in which the gun was found. This prejudicial evidence, linking the gun to the subsequent Wayne Millard homicide, is not admissible at the instance of the Crown.

[31] I should add, in terms of prejudicial effect, that I will instruct the jury as to the permissible and impermissible uses of this evidence. In other words, they will be told that they are not to use the evidence concerning Millard’s contacts with Ward-Jackson and Millard’s purchase and possession of a handgun as evidence of a general criminal disposition or bad character. They can only use it as a possible link in a chain of circumstantial inferences concerning Millard’s intent and concerning planning, in relation to Ms. Babcock’s alleged disappearance and murder, and they must consider the possible innocent inferences as to why Millard may have purchased and possessed the gun (like the charge to the jury in R. v. Terry, supra).

[32] For all these reasons, the July 2, 2012 purchase of the 32 calibre handgun is admissible evidence because its probative worth outweighs its prejudicial effect.

[33] The last part of the firearms evidence that the Crown seeks to tender at trial concerns Millard’s earlier contacts with Ward-Jackson, in late January and February 2012, which led to the purchase of a Walther handgun on February 10, 2012. The Crown submits that this body of evidence provides necessary context, to allow the jury to understand the nature of the pre-existing relationship between Millard and Ward-Jackson at the time when Millard sent two text messages to Ward-Jackson on June 30 and July 1, 2012, seeking a meeting. Without this evidence of the pre-existing relationship, the Crown submits, Millard’s intentions at the time of the text messages will remain ambiguous. The defence will be allowed to submit to the jury, as they did on this Motion, that Millard was seeking to meet Ward-Jackson solely for the purpose of buying cocaine and that it was Ward-Jackson who then made an unsolicited offer to sell the 32 calibre handgun to Millard. If the jury is not told that there was a pre-existing gun-trafficking relationship between Millard and Ward-Jackson, they will have to assess the competing inferences as to Millard’s true intentions on June 30^th^ and July 1^st^, 2012 on the basis of a partial and misleading factual record. As Mr. Lockhart put it, the defence takes the position that the 32 calibre handgun “just fell into Millard’s lap” on July 2, 2012, whereas the Crown submits that Millard sought out the gun. Evidence as to the prior relationship between Millard and Ward-Jackson is essential to resolving this factual dispute, in the Crown’s submission.

[34] Mr. Pillay, on the other hand, submits that the text messages between Millard and Ward-Jackson in the June 30 to July 3, 2012 time period eventually cleared up any ambiguity as to Millard’s intentions. By the evening of July 1^st^, 2012, it is apparent from the text messages that they were talking about the sale of a gun. Accordingly, Mr. Pillay submits, the evidence of a pre-existing gun-trafficking relationship has little probative value as it is unnecessary. On the other hand, the evidence that Millard bought a Walther handgun on February 10, 2012, at a time before any alleged conspiracy to murder Ms. Babcock had crystallized, carries significant prejudicial effect. It infers that Millard and Smich were engaged in some broader criminal conspiracy that involved either the sale of guns or the use of guns. Ms. Trehearne adopted Mr. Pillay’s submissions concerning this body of evidence.

[35] This is a difficult issue with good arguments on both sides, as set out above. In my view, the correct resolution of the issue involves a compromise, where the less prejudicial part of the evidence is admitted and the more prejudicial part is excluded. The Crown has a legitimate need to prove that Millard knew Ward-Jackson was a seller of guns, when Millard sought a meeting with him on June 30 and July 1, 2012. Otherwise, the jury will be left with an incomplete and misleading picture, when evaluating Millard’s intentions at the time of the two text messages on these two important dates (when it can be inferred that Millard and Ms. Babcock were beginning to discuss and/or arrange their eventual meeting on July 3, 2012). The inferences that the defence seeks to draw about his intentions will be left essentially unchallenged or, at least, the defence inferences will be heavily favoured due to the absence of any evidence concerning the prior relationship. On the other hand, the defence has a legitimate need to exclude the evidence that Millard bought a Walther handgun from Ward-Jackson on February 10, 2012 because it carries significant prejudicial effect, as explained above, inferring that Millard was engaged in a broader gun-related conspiracy.

[36] The compromise solution to this closely balanced argument, in my view, is to exclude the evidence of the Walther handgun purchase but admit certain text messages between Millard and Smich during the January 27 to February 3, 2012 time period. In these text messages, Millard asked Smich to arrange a meeting with “Isho” [Ward-Jackson] because “I want to talk about tools.” The Crown’s expert witness concerning street slang or “codified language,” Sgt. Jansz, will testify that the term “tools” means firearms. See: R. v. Marshall and Wong, 2015 ONSC 4593 at para. 8. It was Smich who knew Ward-Jackson, as they had gone to school together. Millard pressed Smich in these text messages to help arrange a meeting with Ward-Jackson in order to discuss “tools.” I agree with Mr. Lockhart that these text messages are not as probative of the nature of the relationship between Millard and Ward-Jackson as the actual purchase of the Walther handgun that ensued on February 10, 2012. However, they serve the Crown’s legitimate purpose of proving that Millard knew of Ward-Jackson as a seller of guns. Furthermore, both Mr. Pillay and Ms. Trehearne concede that these text messages are less prejudicial than the evidence that Millard (with Smich’s involvement) actually purchased a Walther handgun.

[37] There is some moral prejudice associated with the January 27 to February 3, 2012 text messages, as they infer Millard’s and Smich’s interest in guns and their connection to a gun trafficker. However, there is no reference to actual gun-related criminal activity or to any actual purchase of a gun in these text messages. Accordingly, the prejudicial effect is not great and it is amenable to the same jury caution that will already have to be given in relation to Millard’s purchase of a 32 calibre handgun on July 2, 2012, as discussed above (at para. 31). In any event, the Crown’s legitimate need to elicit this evidence, in relation to Millard’s knowledge and intentions when he sought to meet with Ward-Jackson on June 30 and July 1, 2012, outweighs any prejudicial effect.

[38] For all these reasons, the evidence of the January 27 to February 3, 2012 text messages is admissible but the evidence of the February 10, 2012 purchase of the Walther handgun is inadmissible. I note that the text messages may require some editing, for example, in a January 27, 2012 text Smich told Millard that he was “just talkin to kid about oxy” and they appeared to briefly discuss drug trafficking involving “kids.” I will leave this matter to counsel, unless they require my assistance.

[39] That completes my analysis and rulings on the four aspects of the Crown’s firearms evidence.

(iii) The text messages concerning the relationship between Millard and Smich and their joint endeavours prior to Ms. Babcock’s disappearance

[40] The second body of evidence that is at issue on this Motion is a series of text message conversations between Millard and Smich in the months prior to Ms. Babcock’s disappearance. These text message conversations generally refer to certain unspecified joint endeavours that Millard and Smich appear to have been committed to, and to their anticipation that they would soon have time for these endeavours or activities. These texts also suggest that these activities were likely to increase in the near future (the terms “rise” and “escalate” were used).

[41] The Crown initially tendered this body of evidence as part of the Motion concerning extrinsic discreditable conduct that I heard in late August 2017. Undoubtedly, certain parts of these text messages refer to extrinsic discreditable conduct but these parts were relatively isolated and appeared to be amenable to editing. What would be left, after editing of the discreditable conduct, appeared to be relevant to the nature of the relationship between Millard and Smich at this time and to their commitment to each other and to certain joint activities. Accordingly, I asked the Crown to consider editing and to tender the evidence as part of the present Motion. See: R. v. Millard and Smich, 2017 ONSC 5275 at paras. 8-15.

[42] The Crown has now re-submitted this body of evidence, with suggested editing. As the Motion proceeded, during oral argument, there appeared to be broad agreement between the parties as to the admissibility of certain parts of these text messages, provided there was sufficient editing of the prejudicial parts.

[43] The Crown submits that these text messages are relevant evidence concerning the nature of the relationship between Millard and Smich in the period leading up to Ms. Babcock’s alleged disappearance and murder. In particular, the texts tend to infer their close mutual commitment to each other and to certain unspecified joint objectives. They also could infer Millard’s leadership and control, and Smich’s secondary role in the relationship. The Crown submits that this is important evidence in relation to party liability, that is, it assists in determining whether Smich would likely have been privy to Millard’s intentions in relation to Ms. Babcock. There is evidence that Smich may have been present at Millard’s Etobicoke residence on July 3, 2012 when Ms. Babcock appears to have arrived and then disappeared. Needless to say, the Crown seeks to prove actual participation in the alleged homicide, in the form of assistance or encouragement. At a minimum, the Crown seeks to prove that Smich was knowingly present at the scene of the alleged murder as some evidence of aiding or abetting. See: R. v. Dunlop and Sylvester (1979), 1979 CanLII 20 (SCC), 47 C.C.C. (2d) 93 at pp. 106-112 (S.C.C.); R. v. Zvolensky et al. (2017), 2017 ONCA 273, 135 O.R. (3d) 401 at para. 103 (Ont. C.A.).

[44] Mr. Pillay, counsel for Millard on the Motion, agrees that the Crown is entitled to prove the nature of the relationship between the two accused and the fact that they were committed to some joint enterprises. However, Mr. Pillay submits that the Crown must rely on evidence that is not discreditable and unduly prejudicial in order to achieve this purpose. I did not understand Ms. Trehearne to disagree with this concession. As a result, the argument in relation to this body of evidence really became an argument about how much editing was required, in order to remove the discreditable and prejudicial references from the text messages.

[45] Mr. Lockhart has helpfully organized the text messages into thirteen separate conversations extending between January 27^th^ and June 9^th^, 2012 (as set out at para. 31 of the Crown’s Factum). In the first conversation, the two accused agreed to adopt nicknames, namely, “Dman” for Millard and “Say10” for Smich, apparently in the context of their joint music endeavours. It was faintly suggested that the names were prejudicial, but only if they are mispronounced as “demon” and “satan.” This mispronunciation never crossed my mind, and I doubt it will occur to the jury, provided that everyone in the court room is careful to pronounce the two names correctly, exactly as they were spelled. I am satisfied that this conversation is admissible. It infers the closeness and camaraderie between the two accused.

[46] Most of the second conversation relates to Millard’s efforts to contact Ward-Jackson in early February 2012, in order to obtain “tools.” I have already addressed the admissibility of this evidence above. It is relevant and admissible, as part of the firearms evidence, to prove Millard’s knowledge that Ward-Jackson was a seller of guns. Its further relevance, as part of the present body of evidence concerning the relationship between the two accused, is that it infers Millard’s use of Smich to assist him in certain roles. However, the first and the last of the text messages in this conversation should be edited. They are as follows:

• Millard’s text, “I’m down to merk [murder] people if it’s a big enough payoff”;

• Smich’s text, “Like I said, this is only the beginning. I’m makin us a team, an army. You kno. We will be proper soon. Nobody can fuck with Say10 and Dman.”

[47] Although Smich’s text is probative of the two accused’s close commitment to each other, both texts infer a much broader criminal conspiracy and they are highly prejudicial. I am satisfied that they should be edited. They are inadmissible for the reasons already discussed above (at para. 16). The rest of the second conversation is admissible.

[48] The third conversation, to the effect that “we gonna run some sick shit soon,” that it will be “agressively steady,” and that “I want two of every animal,” infers the same broader criminal conspiracy between Millard and Smich discussed immediately above (and at para. 16). In my view, the entirety of this short conversation should be edited as it is all inadmissible.

[49] All of the parties agreed during oral argument that the fourth text conversation is admissible, provided the first sentence is edited. It states, “true dat, I’m still hopeful Ish [Ward-Jackson] will come through on that, if not, we can add it to a mission list, pull over a pharmaceutical truck.” I agree with the parties. The first sentence refers to extrinsic discreditable conduct and to the broader criminal conspiracy between Millard and Smich. Its probative worth is exceeded by its prejudicial effect and it should be edited. The rest of this text conversation is admissible as evidence inferring the close nature of the relationship between Smich and Millard, their commitment to certain joint endeavours that “I [Millard] have planned for you [Smich],” and Millard’s anticipation that he will soon have time for their joint plans.

[50] The fifth and sixth conversations are both short and they are connected as they both involve a discussion about taking a weekend trip to London. There was some dispute during oral argument about these two conversations but I am satisfied that they are admissible, with some minor editing. Millard began the conversation on March 7^th^, 2012 in a text stating, “this weekend I don’t feel like being Dell and Mark, I think it’s Dman and Say10 that will be rolling into London.” Smich then replied three days later on March 10^th^, 2012, by asking, “What’s in London. I meant to ask u but I forgot. Like what am I even bringing?” In my view, there is nothing prejudicial about these two texts. They simply infer the close camaraderie between two friends planning a weekend trip to London. They are admissible. The only problematic part of the conversation is the final text on March 10, 2012 where Smich asks, “Ready for mission or to go out somewhere? Or both.” This final text should be edited. The reference to a “mission” is a reference to the broader criminal conspiracy. It is prejudicial and inadmissible.

[51] During the course of oral argument and after further reflection, Mr. Lockhart fairly conceded that the Crown would not be tendering any of the seventh text conversation. I agree with this concession. The conversation refers to “lots of missions” and to “a 3500 [Dodge truck] mission.” These are references to the broader criminal conspiracy and they are prejudicial and inadmissible.

[52] The eighth conversation took place on April 8, 2012 and it is arguably important. Millard was travelling in the United States at the time and Smich stated, “We gotta have the serious talk when u get back! Time for business to rise.” Millard returned home on or about May 3, 2012 and he texted his friend Andrew Michalski on May 4, 2012 and asked him to keep Millard “updated on where Laura [Ms. Babcock] goes out to, that’d be of use to me.” Millard had told Christina Noudga on April 17, 2012 that he would “hurt” Ms. Babcock and “make her leave.” In mid-May 2012, Millard began his efforts to obtain the incinerator and he began discussing the incinerator with Smich in late May 2012. In other words, this eighth conversation about having a “serious talk” upon Millard’s return from the United States and about it being “time for business to rise” occurs at a time when the Crown alleges the conspiracy to murder Ms. Babcock was crystallizing. Both Mr. Pillay and Ms. Trehearne concede that this conversation is admissible. I agree.

[53] The parties all agree that the ninth conversation is admissible, subject to some editing. The Crown proposed three edits and Mr. Pillay requested two further edits. In my view, all five edits should be made, as follows:

• “I’d steal a car”;

• “with a stolen car, or even just”;

• “to keep you out of jail”;

• “bend it over and fuck it from both ends at once”;

• “I’m probably going to jail later this year for fucking with that shit.”

All five of these passages refer to discreditable conduct and they are prejudicial. In addition, editing them out does not detract from the flow and meaning of the remainder of the text messages, which are otherwise relevant and admissible. They are useful to infer the nature of the relationship between the two accused and they suggest some degree of control and direction by Millard. Accordingly, the ninth conversation is admissible, subject to the above five edits.

[54] Most of the tenth conversation has already been addressed above, when ruling on the Crown’s firearms evidence. It involved Millard’s efforts to obtain a gun for Smich while travelling in the United States. I ruled these parts of the text conversation inadmissible. However, in the last two text messages in the conversation Millard and Smich returned to the topic of the earlier eighth and nine conversations, namely, Smich’s efforts to obtain his driver’s license and the joint endeavours that they were building towards. All the parties agree that these last two text messages are admissible. I agree. Accordingly, most of this tenth conversation should be edited but the last two text messages are admissible.

[55] The eleventh, twelfth and thirteenth conversations were all substantially, if not completely, abandoned by the Crown during oral argument. I agree with this concession. These texts refer to “dark deeds,” to a “bank mission,” and to “small missions.” They also include a particularly offensive rap song that Smich was composing. The prejudicial effect of these three conversations outweighs any legitimate probative value. They are all inadmissible.

[56] In the result, parts of these thirteen text message conversations between Millard and Smich are admissible and parts are inadmissible, in accordance with the Reasons set out above.

(iv) Evidence of financial dependence

[57] The third body of evidence that is at issue on this Motion concerns Smich’s alleged financial dependence on Millard. There is evidence, mainly from Smich’s girlfriend Marlena Meneses, that Millard paid for Smich’s cell phones, paid him to do odd jobs, and gave him expensive gifts. In addition, Smich asked Millard to send him money while Millard was travelling in the United States. Smich stated, “I’m so broke” and “I need money.” Millard eventually sent some money.

[58] Whether this evidence rises to the level of inferring financial “dependence,” it is certainly capable of inferring that Smich needed Millard for some things in his life, that he looked to Millard for assistance, and that Millard was the stronger of the two parties. This is part of the entire picture concerning the nature of the relationship between the two accused. It has little or no prejudicial effect and it is relevant to party liability, for the reasons explained above (at para. 43). In my view, the financial relationship between Millard and Smich is part of the alleged common bond between them and it is admissible.

[59] I note that the text messages in which Smich asked Millard for money, while Millard was travelling in the United States, require some editing. There are some prejudicial and arguably unnecessary references to “missions,” to “some hoes,” to selling alcohol to minors, and perhaps to drug trafficking. I will leave it to the parties to agree on editing, unless they require my assistance.

(v) Desi Liberatore’s evidence

[60] The evidence of Mr. Liberatore (and Mr. Cronin) has already been referred to above (at para. 10). They were high school students who became friends with Smich. He would buy them cigarettes and sell them marijuana. They would meet in Smich’s garage. Their accounts differ somewhat but they generally describe Smich performing a rap song in the late summer of 2012 about burning a girl and throwing her cell phone in the water somewhere. They also then describe Smich telling them that the events in the rap song were true and that he did burn a girl and “threw away the evidence.”

[61] Ms. Trehearne, counsel for Smich, does not object to the admissibility of the above evidence. Although buying cigarettes for minors and selling them marijuana has some minimal prejudicial effect, it is necessary context that explains how and why they met. It is also relevant to the reliability of their accounts because they were all smoking marijuana at the time of the rap song performance.

[62] The more contentious part of Mr. Liberatore’s evidence is what ensued after the above “garage confession,” as the parties call it. According to Mr. Liberatore, he went on to have further conversations with Smich on subsequent occasions in which Smich admitted to “pulling heists,” doing “missions,” and “stealing Bobcats and stuff like construction equipment.” When Mr. Liberatore offered to participate in these “missions,” in order to make “a little extra cash,” Smich told him that he would have to “merk people … sometimes you got to kill people.” Smich also sold heroin to Mr. Liberatore and would talk about “guns and stuff like hot weapons.”

[63] The Crown does not seek to tender the latter evidence, about guns and heroin trafficking. But the Crown does seek to tender Smich’s alleged statements to Mr. Liberatore about stealing Bobcats and murdering people. Ms. Cameron submits that Mr. Liberatore’s credibility and reliability will be attacked and these further details about Smich’s statements are relevant to the overall reliability of the account given by Mr. Liberatore. In particular, the Crown submits that the further details are known to be true and so it can be inferred that Mr. Liberatore’s account is generally reliable. Ms. Cameron also submits that Smich’s statements to Mr. Liberatore about murdering people are tantamount to a confession. Finally, the Crown submits that these further conversations with Smich are what confirmed in Mr. Liberatore’s mind that Smich had, in fact, murdered a girl (it “validated things about what he said about the girl,” as Mr. Liberatore put it).

[64] In my view, the evidence concerning Mr. Liberatore’s further conversations with Smich — about pulling heists, stealing Bobcats, and killing people — is not admissible at the instance of the Crown, that is, during examination-in-chief. These further conversations are highly prejudicial and their only suggested relevance is to rehabilitate Mr. Liberatore’s credibility and reliability, after an anticipated defence attack that has not yet occurred. Furthermore, in order to effectively rehabilitate Mr. Liberatore in this way, the Crown would have to go on and prove that Smich did, in fact, steal a Bobcat and did go on to commit murder (presumably, the Tim Bosma murder in 2013, which took place in the context of stealing a Dodge Ram 3500 truck — the so-called “3500 mission”). I have already excluded all of this evidence on an earlier Motion. Furthermore, Mr. Liberatore’s account of Smich’s statements, to the effect that “sometimes you got to kill people,” cannot realistically be characterized as a confession about a past murder that occurred during a “mission.” He appears to be speaking about anticipated future murders, incidental to the “missions” that he is discussing with Mr. Liberatore. This, of course, is consistent with the broader criminal conspiracy that Smich and Millard appear to have been involved in.

[65] For all these reasons, the Crown should confine Mr. Liberatore to giving evidence on the topics summarized above, at the start of this section of the Reasons: how he met Smich, their garage meetings, the rap song, and the related “garage confession.” If it would assist, I can caution Mr. Liberatore before he testifies about the limited scope of his evidence.

[66] If the defence attacks Mr. Liberatore’s account on the narrow basis that he never believed Smich had confessed to murdering a girl, it may be that I will have to revisit this ruling. That strikes me as the only potentially relevant basis for entering into the further conversations between Mr. Liberatore and Smich. It appears that it was after hearing these further conversations that Mr. Liberatore then felt that the “garage confession” had been “validated.” I am far from being convinced at this early stage that this would be a proper basis for admitting evidence of the further conversations. However, I will await the specifics of the defence attack on Mr. Liberatore’s credibility and reliability before deciding whether this Ruling should be reconsidered.

D. CONCLUSION

[67] For the reasons set out above, the four bodies of evidence tendered on this Motion by the Crown are to be dealt with at trial in the following manner:

• The firearms evidence is confined to the purchase of the 32 calibre handgun between June 30 and July 3, 2012 and the earlier text messages between January 27 and February 3, 2012 concerning meeting with Ward-Jackson in order to discuss “tools.” The rest of the firearms evidence is inadmissible, as explained above;

• The text messages between Millard and Smich in the months leading up to Ms. Babcock’s alleged disappearance and murder, concerning their relationship and their joint endeavours, are admissible in part but only after the editing that I have set out above;

• The evidence concerning Millard’s and Smich’s financial relationship is admissible (again, subject to some editing of the text messages);

• The evidence of Mr. Liberatore, concerning further “missions” and “murders” discussed by Smich, is inadmissible.

[68] I wish to thank all counsel for their helpful and effective submissions and for their thorough materials. It was of great assistance to me on this factually complex Motion.

M.A. Code J.

Released: October 4, 2017

R. v. Millard, 2017 ONSC 5928

Case Summary

A. OVERVIEW

B. FACTS

C. ANALYSIS

(i) Introduction

(ii) The firearms evidence

(iii) The text messages concerning the relationship between Millard and Smich and their joint endeavours prior to Ms. Babcock’s disappearance

(iv) Evidence of financial dependence

(v) Desi Liberatore’s evidence

D. CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 1